A former High Court judge, Ian Callinan QC, is currently playing a central role in an issue of intense political controversy in Victoria: the state parole board’s failure to revoke the parole of Adrian Bayley in the period leading up to his murder of Jill Meagher. His review of the board’s operation is widely quoted in today’s press prior to its formal release.
This is not the first such role for the Queenslander, who was appointed to inquire into the 2007 horse flu outbreak within a month of his retirement from the High Court and recently co-chaired a review of his home state’s struggling Crime and Misconduct Commission. While the Victorian government often asks retired local judges to perform sensitive reviews, the fact that the parole board is chaired by a sitting Victorian judge may explain why the Napthine government opted for an out-of-state (and senior) former judge in this instance.
Commissioned public appointments like these pale in comparison to the political forays of some High Court judges (e.g. H V Evatt’s leap from judge to leader of the federal opposition), but are rare amongst more recent retirees. Exceptions include the Royal Commissions into the Longford gas explosion and WA Inc (involving, respectively, Sir Daryl Dawson and Sir Ronald Wilson) and, most notably, Sir Ronald Wilson’s later presidency of the federal human rights commission and his co-authorship of the Stolen Generations report.
The report is now publicly available here. Interestingly, Ian Callinan AC makes reference to two of his own High Court judgments in the report.
At p65, as a reason for dismissing a redacted suggestion by the Chief Commission of Victoria Police relating to recidivist offenders, he observes that ‘mandatory sentencing can entrap the wrong offenders and lead to unjust results’. In a footnote, he cites a joint judgment of himself and Heydon JA from Ostrowski v Palmer, where a man was convicted of a fisheries offence after being given inadequate advice by Fisheries WA and exposed to a mandatory fine. The joint judgment criticises mandatory sentences at  and , describing the prosecution in their light as ‘having the appearance of an act of mindless oppression’. (For some reason, the report cites two different paras, -, which don’t discuss mandatory sentencing.)
At pp 68-69, he questions that Sentencing Advisory Council’s view that parole may engage the law on ‘legitimate expectations’ developed in the Teoh decision. He notes that a ‘different a much more cautious’ view of that doctrine was stated in the later Lam decision. Although he doesn’t cite any particular judgment, his own reasons in that case harshly critcise Teoh at -.
Well I’m heartened to hear that he has rejected mandatory sentencing. And I’m very interested to read his criticisms in Lam of the Teoh doctrine.
Interestingly, the High Court will soon hear a case on the constitutionality of mandatory sentencing (for people smugglers).